Scott v. Negro Ben. 6 C.

the proviso, and that the fact of previous residence within some one of the United States can be proved by no other testimony, if that which is here prescribed be wanting.

The act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.

[ *7 ] The great object of the proviso certainly was to permit persons, actually migrating into the State of Maryland, to bring with them property of this description which had been within the United States a sufficient time to exclude the danger of its being imported into America for the particular purpose. The great object of the provision was, that the fact itself should accord with this intention. The manner in which that fact should be proved was a very subordinate consideration. Certainly the provisions of the law ought not to be so construed as to defeat its object, unless the language be such as absolutely to require this construction.

It would be a singular and a very extraordinary provision, that a naval officer, or the collector of a tax, should be made the sole judge of the right of one individual to liberty, and of another to property. It would be equally extraordinary that the oath of one of the parties, probably in the absence of the other, should be conclusive on such a question. It would be not less strange that the manner in which this quasi judge should execute his duty should not be prescribed, and that not even the attempt should be made to preserve any evidence of his judgment.

These considerations appear to the court to have great weight; and the language of the law ought to be very positive to deprive them of their influence.

Upon an attentive consideration of that language, the majority of the court is of opinion, that the property of the master is not lost by omitting to make the proof which was directed, before the naval officer, or the collector of the tax, and that the fact on which his right really depends may be proved, notwithstanding this omission.

The words of this part of the section do not appear to the court to be connected, either in their sense, or in their mode of expression, with the proviso. It is a distinct and a substantive regulation. In

legislation, the conjunction "and" is very often used when [8] a provision is made in no degree dependent *on that which precedes it; and, in this case, no terms are employed which indicate the intention of the legislature, prescribing this particular duty, to make the right to the property dependent on the performance of that duty.

It is, then, the opinion of the majority of the court, that the fact of

Field v. Holland. 6 C.

the residence of the plaintiff below within the United States was open for examination, even had his master omitted entirely to make the proof of that residence before the naval officer, or collector of the tax, and, consequently, that the circuit court erred in refusing to admit testimony respecting that fact.

The opinion of the court on this point renders a decision on the other exceptions unnecessary.

FIELD and others v. HOLLAND and others.

6 C. 8.

An order in an equity suit, made by consent, that two persons be appointed "auditors," to examine certain accounts, does not make them referees.

Upon the report of auditors it was competent for the court, on exceptions filed, to look into the evidence in the cause, and to direct an issue, which it might afterwards revoke; and if without an express revocation the court proceed to find the facts, this amounts to an implied revocation.

To a bill by purchasers from the judgment debtor, to set aside a legal title to lands, obtained by the levy of an execution, upon the ground that the judgment was satisfied before the levy, both the judgment debtor and creditor are necessary parties, though the judgment creditor was not a purchaser under the levy.

Being made parties, the answer of the judgment creditor is evidence against the complain. ants; but the answer of the judgment debtor is not evidence in their favor against the other defendants.

Where a complainant has a right to an account, the court may refer the cause, either with or without instructions, as to the principles upon which it is to be taken.

If neither the debtor nor the creditor has made an application of payments, it devolves on the court to make it, and it being equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious.

ERROR to the circuit court for the district of Georgia, in a chancery suit, in which Field, Hunt, Taylor, and Robinson, were complainants, and Holland, Melton, Tignor, Smith, Cox, and Dougherty, were defendants.

The decree of the court below dismissed the bill as to all the defendants. The material facts appear in the opinion of the court, and in the following extract from the opinion of the court below:

"The only difficulty arises upon the application of sun- [ *14 ] dry payments which the complainants contend extinguished the judgment, but which the defendant Holland, replies were applicable to other demands. The principle on which the court has determined to decree is this; that all payments shall be applied to debts existing when they were made, and as it appears that there were sundry demands of Holland's on Cox which were not secured by judg

Field v. Holland. 6 C.

ment, that those sums shall be first extinguished, and the balance only applied to the judgments.

"This application of those payments is supported by general principles, as well as the particular circumstances of the case.

"1. The payer had a right at the time of payment to have applied it to which debt he pleased, where a number existed, but if he neglects to do so, generally, it rests in the option of the receiver to make the application. In this case Cox takes his receipts generally. [ 15 ] Even when the large payment of $20,000 was made, he takes a receipt on account.

“2. It appears that the application of those payments has actually been made in the manner we adjudge; for from a letter of Mr. Vaughan, through whom most of the payments were made, he intimates that he had given up the evidences of several debts to Cox, because they had been satisfied. Such an act could only have been sanctioned by a knowledge on his part that the money paid through him was in part applicable to those debts."

[ 16 ]

[ 18 ]

[ * 20 ]

*Jones and Harper, for the plaintiffs in error.

* F. S. Keye and C. Lee, contrà.

MARSHALL, C. J., delivered the opinion of the court, as

follows:

In this case some objections have been made to the regularity of the proceedings in the circuit court, which will be considered before the merits of the controversy are discussed.

In May term, 1803, the following order was made:

"By consent of parties, it is agreed, that William Wallace, James Wallace, and John Cumming, or any two of them, be appointed auditors, who shall have power to examine all papers and documents relative to payments made by Zachariah Cox, in satisfaction of judgments obtained by said Holland against said Zachariah, and charged in said bill to be satisfied, and that the testimony of John Vaughan, taken by complainants before Judge Peters, and now in the clerk's office, may be produced by them to said auditors. And it is further agreed, that said auditors may meet at any time after the first day of April next, and not before, on ten days' notice given to the adverse party." The auditors returned the following report:

[*21 ]

"We are of opinion, from the papers laid before * us, by both parties, that the judgments in the above case have been satisfied by payments made prior to February, 1796." On exceptions this report was set aside.

Field v. Holland. 6 C.

By the plaintiffs in error it is contended, that the order under which the auditors proceeded was equivalent to a reference of the cause by consent, and that their report is to be considered as an award obligatory on all the parties, unless set aside for some of those causes which are admitted to vitiate an award. But this court is unanimously of opinion, that the view taken of this point by the plaintiffs is incorrect. The order in question bears no resemblance to a rule of court referring a cause to arbiters. It is a reference to "auditors," a term which designates agents or officers of the court, who examine and digest accounts for the decision of the court. They do not decree, but prepare materials on which a decree may be made. The order in this case, so far from implying that the decision of the auditors shall be made the decree of the court, does not even require, in terms, that the auditors shall form any opinion whatever. They are merely directed to examine all papers and documents relative to payments made in satisfaction of the judgments.

From the nature of their duty they were bound to report to the court, and to state the result of their examination, but this report was open to exception, and liable to be set aside. In the actual case the report was a very unsatisfactory one, and was, on that account, as well as on account of the objections to its accuracy, very properly set aside.

The cause was again referred to auditors, who reported that no evidence had been offered to them of payments to be credited on the judgments alleged by the plaintiffs to have been discharged.

The defendants insist that this report ought to have ter- [ 22 ] minated the cause. But the court can perceive no reason for this opinion. If there were exhibits in the cause which proved that payments had been made, the plaintiffs ought not to be deprived of the benefit of those payments, because the auditors had not noticed the vouchers which established the fact.

The court, without making any order relative to this report, directed an issue for the purpose of ascertaining, by the verdict of a jury, the credits to which the plaintiffs were entitled.

It was completely in the discretion of the court to ascertain this fact themselves, if the testimony enabled them to ascertain it; or, if it did not, to refer the question either to a jury, or to auditors. There was, consequently, no error, either in directing this issue, or in discharging it.

But, without trying the issue, or setting aside the order, the court ▾ has made an interlocutory decree, deciding the merits of the case by specifying both the debits and credits which might be introduced into the account, and directing their clerk to state an account in conformity with that specification.

Field v. Holland. 6 C.

This interlocutory decree is undoubtedly an implied discharge of the order directing an issue, and is substantially equivalent to such discharge. Had the issue been set aside, in terms, in the body of the decree, or by a previous order, it would have been more formal, but the situation of the case and of the parties would have been essentially the same. The only real objection to the proceeding is, that the parties might not have been prepared to try the cause in court, in consequence of their expectation that it would be carried before a jury. There is, however, no reason to believe that this could have been the fact. Had there been any objection to a hearing on this ground, it would certainly have been attended to, and, if overruled,

would have been respected by this court. But no objection [23] appears to have been made, and the inference is, that the cause was believed to be ready for a trial.

These preliminary questions being disposed of, the court is brought to the merits of the case.

The plaintiffs claim title to a tract of land in the State of Georgia, under several mesne conveyances from Micajah Williamson, the original patentee. In the year 1793, while these lands were the property of Zachariah Cox, one of the defendants, two judgments were rendered against him in favor of John Holland, also a defendant, for the sum of 4,556. sterling. These judgments remained in force until the year 1799, when executions were issued on them, which were levied on the lands of the plaintiffs held under conveyances from Cox, made subsequent to the rendition of the judgments. John Gibbons, the agent of the plaintiffs, objected to the sale, because the judgments were satisfied either in whole or in part, but as he failed to take the steps prescribed in such case by the laws of Georgia, the sheriff proceeded, and the lands were sold to Melton and others, who are also defendants in the cause.

This bill is brought to set aside the sale and conveyance made by the sheriff; and it also contains a prayer for general relief.

As the judgments constituted a legal lien on the lands in question, and the title at law passed to the purchasers by the sale and conveyance of the public officer, the plaintiffs must show an equity superior to that of the persons who hold the legal estate. That equity is, that the legal estate was acquired under judgments which were satisfied, and that sufficient notice was given to the purchasers to put them on their guard.

If the facts of the cause support this allegation, the equity of the plaintiffs must be acknowledged; but it is incumbent on them to make out their case.

[ *24 ]

*In the threshold of this inquiry, it becomes necessary to